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VACCINE MFR. EXEMPTION FROM STRICT LIABILITY FOR "PUBLIC POLICY REASONS"

Executive Summary

VACCINE MFR. EXEMPTION FROM STRICT LIABILITY FOR "PUBLIC POLICY REASONS" should be established in law, California State Appeals Court maintained in a recent decision that overturned an $800,000 jury award against oral polio vaccine mfr. Lederle. "Although in standard products liability litigation a plaintiff may utilize strict liability design defect theory, such a strict liability cause of action must be prohibited for public policy reasons if the court determines, after taking evidence, that the product complained of is 'unavoidably dangerous,'" the court ruled. In cases of unavoidably dangerous products, such as vaccines, "a plaintiff may proceed on a design defect theory only on the basis of negligence," the court continued. Like all products, unavoidably dangerous ones "are subject to strict liability for manufacturing defects"; however, "such products are subject merely to negligence liability for warning defects." The ruling remanded to lower state court a case involving a child, Elizabeth Kearl, who contracted polio after being administered Lederle's Sabin vaccine in 1978. The opinion was written by state Appellate Judge Sabrow for himself and Judges Channell and Poche. The court rejected arguments that the vaccine warning was inadequate. The plaintiff contended that the warning should have stated that people are as likely, or even more likely to contract polio from the oral vaccine as from wild polio virus; with such a warning the child's mother would have opted for either the Salk injectable vaccine or no vaccination. There have been no known reactions to the Salk vaccine, which contains killed virus; approximately one in four million vaccinees receiving the oral product, which contains attenuated virus, experience reactions. Lederle "directly warned plaintiff in plain and explicit terms" through a one-page warning/consent form "about the risk of contracting polio from the vaccine," the decision states. "It described the alternative vaccine . . . and stated that vaccine carried no risk of causing polio, that it was available, and that most polio experts feel it is not as effective as ]the Sabin vaccine[ in controlling polio nationwide -- an objective statement of fact clearly borne out by the literature. The reader was specifically invited to inquire further about ]the Salk vaccine[ and was generally invited to ask questions about polio and polio vaccination," the court said. "We conclude this warning adequately informed plaintiff of the reasonably foreseeable risks associated with" the oral and the alternative injectable vaccine products.
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